Quotes of the day

posted at 10:40 pm on July 2, 2012 by Allahpundit

In the wake of Chief Justice John Roberts’ stunning about-face in the Obamacare case, conservatives who follow judicial issues are asking themselves: Did we ever really know Roberts? Did we get him wrong?…

“His ideological opinions he certainly kept to himself,” says one of those former Senate aides. “He was a blank slate because he had represented so many different sides,” says the other.

The public debate over Roberts echoed those private doubts. As Roberts sought confirmation, conservative commentators as varied as Charles Krauthammer and Ann Coulter called him a “tabula rasa.”

There is informed speculation in conservative legal circles that a close reading of the dissent shows Roberts had intended to strike down Obamacare, but flipped his position at the last minute. We don’t know if he was suddenly convinced by his liberal colleagues, or simply had a failure of nerve. But the challenge for conservatives is clear: We need jurists who not only have a philosophy of judicial restraint, but the intestinal fortitude not to be swayed by pressure from the New York Times, the Georgetown cocktail circuit and the legal academy.

***

“Bush v. Gore is an example of a decision the left didn’t respect in part because they thought it was political motivated,” said Randy Barnett, a Georgetown University law professor who worked with the National Federation of Independent Business on its case against the law. “What the left says of Bush v. Gore, I think is true of this decision.”…

“He’s an umpire that seemed worried that people from the stands would be hollering at him,” said Chapman University law professor John Eastman.

“If he changed his vote because he was persuaded by the argument in favor of the health care bill, then I think he’s wrong but that’s fine,” Eastman said. “If he changed his vote because people were critical of the court and he was afraid of those criticisms and nevertheless was of the view the bill was constitutional, then yeah, I think he should resign.”

***

The problem is that Roberts’s interpretation is not fairly, or even remotely, possible. If the law had been written in the Roberts version — as a regressive federal tax on the uninsured — there is no chance it would have passed Congress. More to the point, the law that Roberts describes would have covered a different number of the uninsured. Academic studies indicate that people respond differently to tax penalties than they do the legal mandates. “When the imperative to buy insurance,” notes Yuval Levin, “is instead presented as a choice between two options, more people will likely choose the cheaper option (which, for almost everyone, will be paying the tax rather than buying the coverage).”

Why did Roberts not account for this policy distinction? The most natural interpretation is that he didn’t know anything about it. Which is precisely the point. Roberts is not a health policy expert. His clever reinterpretation of the health law would actually change its outcome. This is not an alternate reading but an alternate universe.

***

Chief Justice John Roberts, a good man who apparently thought he was doing the right thing, is increasingly taking on the character of a lone figure from classical Greek tragedy. If one collates all the news reports, rumors, and scuttlebutt, and if they are mostly credible, one learns of his tortured switch. It was perhaps prompted by a genuine desire to mitigate the Court’s “partisan” reputation, or to establish Roberts in the long tradition of a Warren or Souter, as a jurist who “evolved” on the Court in a fashion that pleases the influential in Washington and New York—or both. (And indeed, those who were vilifying him before the verdict were the first to heap praise on his judicial statesmanship—at least for now.) The tragedy is that, as the story comes out, the reputation of the Court will sink not rise, as—fairly or not—it appears overly sensitive to public opinion and liable to capitulate to such pressures in mediis rebus.

Roberts, who wanted to cement his reputation as a sober and judicious jurist, through his Hamlet-like deliberations ended up seeming incoherent, tentative, and unsure of himself. And if it’s true that rumors of Roberts reconsidering his vote swirled in Washington prior to the final outcome, and that such perceptions of hesitation prompted renewed venom and pressure — from not just the media, but from those such as Senator Leahy (who had voted to confirm Roberts) on the floors of Congress, and the president himself (who attacked the Court even earlier in his State of the Union address) — then the Court comes off as far more suspect after the opinion than before. Everything Roberts wished to prevent he ensured.

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The Court has ruled previously in many cases that the Congress has the authority to grant deductions, exemptions, etc., pursuant to legislative grace. It does NOT — well, it didn’t until last week — have the authority to compel an inactive person to enter the stream of commerce so as to regulate him or force him to pay a tax should he fail to comply. One is positive. The other is negative.

The Constitution, specifically, provides for the four types of taxes that are permitted (capitation, which must be apportioned, excise, income, and impost). The tax associated with Obamacare is not any of them. Roberts’ opinion specifically states that it is not a direct tax. It is not an excise tax since there lacks a taxable event (positive). It’s not an income tax since income is not the trigger. It is certainly not a tariff or duty.

The tax is to be collected by the IRS. No one denies that the IRS can collect taxes and penalties, but this tax is, in reality, a penalty and the IRS only collects penalties when they are associated with underlying penalties. The IRS is not like the EPA, which can fine or penalise.

Tax deductions are not covered in the COTUS. Taxes are…explicitly.

Resist We Much on July 3, 2012 at 2:01 AM

I don’t deny any of that – what I care about most is what happens in the real world, which is where normal people’s heads are.

If my neighbor and I are in the same tax bracket with the same income, and he ends up paying less in taxes than I do because of all of his write-offs, I paid more in taxes effectively than he because I didn’t bother getting off my butt to go for the write-offs i.e. I got taxed more because of my inactivity.

That’s not rationally debatable – Congress, with its “legislative grace”, is allowed to play God regarding taxation, and to be anxious about some ‘vast new power’ Roberts’ granted Congress reminds me of the fearmongering that was done over VATs during the Republican debates, as though the basic power to create such taxes doesn’t already exist!

Yes, it will be the gift that keeps on giving indefinitely since it sets a precedent that goes far beyond Obamacare and health insurance. Furthermore, the tax goes into effect in 2014 and can be challenged then by individuals. Whether the Court would grant cert and want to relitigate the tax issue is unknown, but there is an argument, at least, for an examination considering the novelty of Roberts’ reasoning.

If the new taxing power is used in new legislation, then it would certainly — I would think — give rise to challenges on the expanded taxing authority.

Repealing Obamacare would only make the mandate tax moot. A new case is going to have to be won, a law passed in Congress prohibiting such taxes, or a Constitutional amendment prohibiting them to prevent this precedent from gobbling up that which the Commerce Clause and General Welfare Clause have not.

Resist We Much on July 3, 2012 at 2:15 AM

I do understand why people are concerned w/Roberts’ decision’s affect on taxation from the angles lawyers, like you, deal with, it’s just that I am not much worried about its effects in the future.

You may believe I’m underreacting, but to me, directly or indirectly, a tax is a tax, which we suffer from too many of already – another one, ‘Roberts’ new tax!!!, doesn’t excite me in the least, because I believe Leftists could creatively achieve it in some other way if they wanted.

What I consider most important is that people see them wherever they’re coming from, and whether inadvertently or by design, Roberts’ decision helps us overall this way imo.

There was a series of movies and a TV series starring Shintaro Katsu as Zatoichi, an iaido master who uses a cane sword and an inverse grip. Some of them are quite good. OC posted a link to a clip from a 2003 version starring Takeshi Kitano the other night that I hadn’t seen before.

I don’t recall a big libertarian contingent in the early years of HA, but then again I would have ignored them back then just as I ignore them now.

pedestrian on July 3, 2012 at 12:16 AM

I myself am shocked by how many of you liberal Romney supporters fester this site.

Keep voting democrat.

tom daschle concerned on July 3, 2012 at 12:54 AM

We’ll leave it to you liberals to support your liberals, thankyouverymuch!

Sorry, the person throwing a tantrum and trying to reelect Barack Obama because his messiah couldn’t come close to getting elected doesn’t get to pretend to be an adult.

SWalker on July 3, 2012 at 1:06 AM

Sorry, but the persons supporting Romney who is in turn refusing to fight against his beloved 0bamacare doesn’t get to call themselves a republican. You are merely a RINO today.
Conservatives to Mitt: Quit Now If You Won’t Fight Obamatax!

Where will the conservatives and RonBots go when they have no one else to vote for?Conservative Gary Johnson 2012: He isn’t Rom0bama

The left sees the law as a tool of social justice — so they start with the desired outcome and then come up with legal reasoning to justify it. That is what Roberts did last week. He decided he wanted to uphold Obamacare and rewrote the statute to fit that outcome.

Sad, but apparently true.His opinion does not make sense from any other perspective.
At least when you read Roe, the opinions specifically state they do not want to make a judicial decision about when life begins, which is probably appropriate as this may not be a justiciable question.
Here, one person basically created a hypothetical version of the ACA in order to avoid overturning the signature legislation of the first black president of the United States. It almost would have been better if they had refused to decide the case as it was a political question.

Not for much longer thanks to the Romney camp showing their liberal colors AGAIN and ignoring the demands of real Republicans, but you must know that already if you actually bother to read the topics here. :o))

How does what Roberts did even conform to the constitution? He rewrote the law that Congress presented to him by changing the definition of words to meanings different than the ones the lawmakers wrote and intended according to their claims in order to permit the law to stand. That’s not a judge’s roll. He allowed the admin to get away with arguing that the mandate both was and was not a tax according to what suited their purpose on a given day. Then he agreed with him and both counts. Why? Who even cares? If he was trying to garner some sort of “good opinion” for “his court”, or whatever, his actions did completely the opposite for half to more of the US population. He took us over the cliff into complete socialism in a felled swoop.

Why are the Obama-supporting Romney bashers always a bunch of boring, repetitive, unoriginal imbeciles? Aren’t any of them capable of offering something worthwhile? At least the Romney-bashing Obama supporter SteveAngel is more entertaining with his occasional references to Mitt’s supposed service to Satan. Obama-supporting fake tea partier DannyJyd sounds exactly like the kind of knee-jerk, simple-minded mouth breather caricature that liberals like to mock. I’m actually kind of embarrassed that people like him post here. These people try to take any little supposedly bad news for Romney, and then cheerfully declare how Obama is going to win. There’s never any depth to anything they say. It’s just calling Romney a socialist, liberal, communist, etc. over and over. None of it is ever honest and none of it ever has any depth. Sadly for them, Romney is going to win this thing, and they won’t be able to have their little “I told you so” spamming celebrations in the comment section. I wouldn’t be too sad if they slink away for good after Obama’s loss.

At this point, anyone who isn’t for Romney (the one person who can and will repeal Obamacare) is for reelecting Obama. It’s that simple.

Also, this whole business about the supposed need to call Obamacare a “tax” totally distracts from discussion about real substantive problems with the law. Demanding that the mandate be called a tax is agreeing with Roberts, who found it constitutional. Joel Pollack over at Breitbart is a joke, and I have no idea why anyone would be too influenced by anything he says. Ever since I saw Pollack (along with the equally unimpressive Ben Shapiro) bomb on CNN when trying to explain why the “bombshell” Obama Harvard video was a big story, I knew the guy was a waste of time.

it appears overly sensitive to public opinion and liable to capitulate to such pressures in mediis rebus.

In this case, it wasn’t public opinion. He was afraid of Obama. He was afraid of a Marxist thug who hollered at him from the thrown he’s building for himself out of toy blocks. Roberts sold out families, children, moms, dads, veterans, the elderly and weak and the sick all so worthless men and women in the American press could say nice things about him and the bad man in the WH wouldn’t point his finger and look mean.

7 months left to change direction. It really is up to the people and to a merciful God. Judges can be impeached. This is where Newt Gingrich is right… the judges are working for the people and need to be held accountable. We are not slaves at the mercy of our masters.

. . . If my neighbor and I are in the same tax bracket with the same income, and he ends up paying less in taxes than I do because of all of his write-offs, I paid more in taxes effectively than he because I didn’t bother getting off my butt to go for the write-offs i.e. I got taxed more because of my inactivity.

That’s not rationally debatable – Congress, with its “legislative grace”, is allowed to play God regarding taxation, and to be anxious about some ‘vast new power’ Roberts’ granted Congress reminds me of the fearmongering that was done over VATs during the Republican debates, as though the basic power to create such taxes doesn’t already exist!

Bizarro No. 1 on July 3, 2012 at 2:36 AM

It’s not the same thing at all.

How one files their tax return on an activity which they are subject to taxation on is not the same as whether or not the person is subject to taxation to begin with.

The “inactivity” in not taking the deductions when filing the tax is not the same as being subject to filing the tax in the first place because of an inactivity.

Not buying health insurance is not an error or oversight or laziness or a poor decision (depending on that individual person’s circumstances.) In this country it is up to the individual to decide what course of action in relation to certain things is best for him financially. His choice is up to him to decide what is the best choice for him.

Not taking deductions in filing a return is always the wrong choice. He is still free in this country to make a mistake, but it is not on the same level as choosing what is the best course of action for him with health care coverage and being taxed because he made a decision the government didn’t want him to make.

The government’s choice could be the wrong thing for that person to do.

Not taking the deductions to lower a tax is always the wrong thing to do.

Lowering a tax that is already established on an activity is not the same as being subject to a new and unique tax in the first place on an inactivity.

You are indulging yourself in a semantical game I am not interested in playing. It’s like listening to 0bamessiah argue with Stephanopoulos about the meaning of “tax” all over again – sorry, been there, done that! :)

If you can’t understand how our government uses a convoluted tax code to tax/penalize/reward activity/non-activity near-infinitely, I say that you are hopelessly offtrack…

I eagerly await not having to see this chump’s smiling face in photos. He is a complete failure if Rush Limbaugh is factual. Somebody that made a radical reversal in his own beliefs and his own understanding of the law because rags like Rolling Stone or jokes like MSNBC were saying bad things about him. The Communists will still hate his guts because he has been branded, and their closed brains can’t handle redirection.

So now we have a total remake of the role of president and the supreme court has failed to the degree of Roe vs Wade. When does the good news start?

Roberts confirms what most patriotic Americans have been complaining about for several decades now…American Politicians and Judicial System has been either ignoring or intentionally obfuscating America’s Constitutional Republic.

“That is the kind of sophistry we expect from liberals. The left sees the law as a tool of social justice — so they start with the desired outcome and then come up with legal reasoning to justify it. That is what Roberts did last week. He decided he wanted to uphold Obamacare and rewrote the statute to fit that outcome.”

Such a disappointment. With all of these pictures of Roberts for the past few days, I should be in heaven right now. I always thought he was so handsome and smart. Now the sight of him fills me with grief…

You just caused me to consider this; what if Mittens pisses off enough republicans AGAIN to cause them to either stay home, OR [something I’ll never ever do] VOTE FOR 0BAMA? You’ve certainly made that claim enough to give people the idea here.

After all, no one knows about the third party candidates, and if they AGAIN feel that the GOP and/or Romney has stuck It to them…

I’ve wasted enough time trying to get people like YOU to volunteer in order to get Willard elected. Go right ahead and watch your world go to the devil. If you don’t want to help yourself I’ll stop as well.